United States District Court, D. Colorado
OPINION AND ORDER ADOPTING RECOMMENDATION AND GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS
MARCIA S. KRIEGER, Chief District Judge.
THIS MATTER comes before the Court on the Recommendation (#60) of the Magistrate Judge that the Defendants Rick Raemisch,  Carmen Meyer, Hermella Assefa, Wonda Jacobs, Emmanuel Okai, and Jamie Harrelson's Motion to Dismiss (#39) be granted. The Plaintiff Darrell Havens filed Objections (#61) to the Recommendation.
The following facts relevant to the motion to dismiss are derived from the allegations contained in the Amended Complaint (#9).
Mr. Havens, proceeding pro se,  is currently in the custody of the Colorado Department of Corrections (CDOC) and is incarcerated at the Denver Reception and Diagnostic Center (DRDC) in Denver, Colorado. He was transferred to DRDC under the direction of the Executive Director of CDOC. He is an "incomplete quadriplegic" and is "totally dependent on nurses and Offender Care Aides."
In November 2011, Mr. Havens was sent to a spine specialist for his "70 degree scoliosis curvature." The specialist determined that he needed a CT scan and then prepared him to do a "fusion with bars and screws, permanent fixtures." The CT scan was performed, but then the Executive Director of CDOC, along with Defendant Physicians Healthcare Partners, "stopped the procedure" because the "paperwork seemed like cosmetic.'"
In May 2012, Mr. Havens' provider recommended that he again see a spine specialist because he was suffering severe bladder infections that had caused his catheter hole to close. He was sent to Denver Health, where he saw ortho-spine doctor, Dr. Vanderveen. Dr. Vanderveen recommended an immediate CT scan because Mr. Havens has "4 fractured vertebra[e]/1 broken." Apparently the procedure was "approved, " but the next week "everything was stopped by [Defendant] Physician Healthcare Partners" because they did not feel it was a "progressive surgery." Mr. Havens alleges that the recommended surgery would give him the ability to use the restroom on his own, walk, and relieve pain. He further alleges that without the surgery, his condition will continue to worsen.
Further, Mr. Havens has suffered "nonstop" bladder infections due to Defendants Harrelson and Meyer "misusing" antibiotics. In one month, he was sent to the hospital by ambulance three times, presumably due to infection. His antibiotic was also changed eight times, which "wiped" his immune system and made him susceptible to viruses.
On one occasion, Mr. Havens suffered a seizure due to Defendant Harrelson refusing to renew his medication, which she knew he could not go without.
Finally, Mr. Havens has been left lying in his own feces for hours because Defendants Assefa, Jacobs, Boydin, and Okai refused to put him on the toilet. On December 9, 2012, Mr. Havens pushed his nurse call button from 11:15pm-2:20am, trying to get assistance. The Defendants told him that he had to wait for Offender Care Aides to come at 4:00am.
After initial review of the Amended Complaint, the Court determined (#10) that Mr. Havens asserts claims under 42 U.S.C. § 1983 for violations of the Eighth and Fourteenth Amendments based on (1) the denial of corrective surgery by the Executive Director of CDOC and Physician Healthcare Partners; and (2) inadequate medical treatment claims against Defendants Meyer, Assefa, Boydin,  Jacobs, Okai, and Harrelson. Mr. Havens requests an order requiring the performance of the corrective surgery and directing mandatory training on decision-making for each named Defendant. He also seeks damages and costs.
Defendants Raemisch, Meyer, Assefa, Jacobs, Okai, and Harrelson (collectively, the Defendants, for purposes of this opinion) move to dismiss Mr. Havens' claims pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). They argue that the Eleventh Amendment bars all official capacity claims, and that the Amended Complaint fails to state individual claims under § 1983. The Defendants further contend that they are entitled to qualified immunity.
In response, Mr. Havens argues that his allegations are sufficient to state claims against the Defendants. Specifically, he states that the Executive Director knew or had reason to know of his medical condition because he has applied for executive clemency. He further argues that his serious medical condition is obvious.
The matter was referred to the Magistrate Judge, who recommends that the Defendants' motion to dismiss be granted in part and denied in part. The Recommendation found that (1) the Eleventh Amendment bars claim against the Defendants in their official capacities only to the extent Mr. Havens seeks damages; (2) the Amended Complaint fails to state a claim under the Eighth Amendment against Defendants Raemisch, Harrelson, and Meyer; (3) the Amended Complaint states an Eighth Amendment conditions of confinement claim against Defendants Assefa, Jacobs, and Okai, and these Defendants are not entitled to qualified immunity on that claim; (4) the Amended Complaint fails to state a claim under the Equal Protection Clause of the Fourteenth Amendment; and (5) Mr. Havens may seek compensatory damages against Defendants Assefa, Jacobs, and Okai to the extent he alleges he suffered bladder infections as a result of being left to lie in his feces for hours.
Mr. Havens objects to the Recommendation, arguing that the Magistrate Judge improperly found that the Amended Complaint fails to state Eighth Amendment claims against Defendants Clements,  Harrelson, and Meyer. He asserts that he has documentation that the recommended surgery would improve his mobility, which would in turn reduce urinary tract infections, compression sores, and lung infections. He further asserts that the Executive Director was given his complete medical file, and therefore knew that Mr. Havens would continue to suffer constant infections and sores if the surgery was denied.
II. Standard of Review
When a magistrate judge issues a recommendation on a dispositive motion, the parties may file specific, written objections within fourteen days after being served with a copy of the recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The district court shall make a de novo determination of those portions of the recommendation to which timely and specific objection is made. U.S. v. One Parcel of Real Prop. Known as 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996). Here, Mr. Havens filed untimely Objections to the Recommendation. Nevertheless, the Court reviews the matter under the de novo standard of Rule 72(b).
In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept all well-pled allegations in the Amended Complaint (#9) as true and view those allegations in the light most favorable to Mr. Havens. Stidham v. Peace Officer Standards and Training, 265 F.3d 1144, 1149 (10th Cir. 2001) (quoting Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999)). The Court must limit its consideration to the four corners of the Complaint, any documents attached thereto, and any external documents that are referenced in the Complaint and whose accuracy is not in dispute. Oxendine v. Kaplan, 241 F.3d 1272, ...